Thursday, November 01, 2007

Oregon Attorney General Says No to RIAA; Files Motion to Quash on Behalf of University of Oregon; Says RIAA Evidence Doesn't Identify Infringer

In Arista v. Does 1-17, a new ex parte case to get discovery from the University of Oregon about the identities of its students, the Oregon Department of Justice has made a motion, on behalf of the University of Oregon, to quash the subpoena obtained by the RIAA.

This is the first such motion of which we are aware that has been made by the university itself, rather than by the students.

It is also the first instance of which we are aware of a State Attorney General bringing a motion to quash an RIAA subpoena.

The motion papers of the Attorney General argue that it is impossible to identify the alleged infringers from the information the RIAA has presented:

7. [We] have attempted to identify all seventeen alleged infringers and have been unable to do so. 8. Five of the seventeen John Does accessed the content in question from double occupancy dorm rooms at the University. With regard to these Does, the University is able to identify only the room where the content wis accessed and whether or not the computer used was a Macintosh or a PC. No login or personally identifiable information, i.e. authentication, was used by the Does to access the University's network because none is required. The University cannot determine whether the content in question accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor. 9. Two of the seventeen John Does accessed the content in question fiom single occupancy dorm rooms at the University. No login or personally identifiable information, i.e. authentication, was used by the Does to access the university's network because none is required. The University cannot determine whether the content was accessed by the room occupant or visitor. 10. Nine of the seventeen John Does accessed the content in question from the University's wireless network or a similar system called the "HDSL Circuit." These systems do record a user name associated with the access. For these John Does, the University can determine the identity of the individual who bas been assigned the user name, however, it is unable to determine whether the content was accessed by the individual assigned that user name or by someone else using the computer associated with the user name. 11. In the case of sixteen of the seventeen John Does, I believe it is not possible for the University to identify the alleged infringers without conducting interviews and a forensic investigation of the computers likely involved.

Accordingly, the AG concludes,

Plaintiffs' subpoena is unduly burdensome and overbroad. It seeks information that the University does not readily possess. In order to attempt to comply with the subpoena, the University would be forced to undertake an investigation to create discovery for Plaintiffs -- an obligation not imposed by Rule 45. As the University is unable to identify the alleged infringers with any accuracy, it cannot comply with its federal obligation to notify students potentially affected by the subpoena. Plaintiffs' subpoena is additionally invalid because Congress intended Plaintiffs to use the DMCA subpoena process to obtain the information they seek, not Rule 45. Lastly, the University should be allowed access to Plaintiffs through interrogatories and depositions to determine whether Plaintiffs have additional information with which to identifyDefendants. For the foregoing reasons, Plaintiffs' subpoena should be quashed.

The University of Oregon is represented by the Attorney General of the State of Oregon.

While all the arguments used by the AG are important and valid why the subpoena should be quashed, with my IANAL understanding I think Number 10 "These systems do record a user name associated with the access. For these John Does, the University can determine the identity of the individual who bas been assigned the user name, however, it is unable to determine whether the content was accessed by the individual assigned that user name or by someone else using the computer associated with the user name." is the most important argument since it explains again that an IP-Address or a username (or a screenname like RLG@KaZaA for example) does not identity individuals! Having such an argument made by an AG now too might help to persuade judges elsewhere to throw RIAA's junk-science, noninvestigation, "information and belief"-suits out as early as possible.

That is fantastic news... I'm very suprised a state AG got involved, but it's good to see they did. Hopefully this will prompt more universities to stand up to the obvious extortion tactics that have been employeed by the record industries Goons.

Essentially the Oregon AG is recognizing that the RIAA's evidence does NOT indicate that the person they're targeting committed a copyright infringement. I can't imagine how the RIAA is going to rebut this, since its own expert witness "Dr. Doug" testified at his deposition in UMG v. Lindor that the MediaSentry investigation can't identify the individual who committed the alleged infringement, and since SONY BMG's in house legal counsel testified to like effect at the Capitol v. Thomas trial.

I think the AG is involved because University of Oregon is a state institution, and is represented by the AG's office in litigation. I am thrilled that Oregon's AG's office is well versed in the law in this area, and am hopeful that other AG's will follow their lead, and that other universities and colleges will show the same respect for their students' civil rights which the University of Oregon has shown.

i disagree with you on the thomas case.... the forensic examination in thomas proved that it hadn't taken place on her computer... all they had was the fact that the kazaa user had used ms. thomas's usual user name, which could have come about in a lot of different ways...

if i had your computer as a zomby i would know in a minute that you use the name "russell" and would use that as my kazaa user name.... if i were an enemy, a jilted girlfriend, an unpleasant or nutty neighbor, etc., i would also know you use the name "russell"...

all that happened in thomas was a perfect storm of a biased and ignorant jury, a ridiculous jury instruction, and a $500,000 full court press by the riaa running dogs.... i don't think that jury verdict will stand...

11. In the case of sixteen of the seventeen John Does, I believe it is not possible for the University to identify the alleged infringers without conducting interviews and a forensic investigation of the computers likely involved.

I wonder if the RIAA is going to seize upon that as a reason to oppose the motion -- saying they can still get useful information about one of their targets from their request.

Or would they have to refile each request for information separately and have 16 of them quashed (for these same reasons) to get the information about the 17th Doe? Would the judge let them do that, would he force the university to identify the one Doe they can identify, or would he do something else about that 17th Doe?

No mention of illegal joinder of unrelated Doe defendants. Could a Doe say that he was not accused of any infringing activity re: some of the Plaintiff record companies, and demand that they be dropped from the suit entirely?

I believe, Steve, that you failed to grasp the situation. p. 6 Of the AG's motion stated that all 17 Does can't be identified.

p. 7, 8, and 9 of the motion breaks it all down. Five IP addresses were assigned to Double Occupancy dorms, and while the University can determine what dorm the address is assigned to, it can not determine witch one in the dorm used the computer at the time of "the alleged infringement".

Two IP addresses come from single occupancy dorms. The good point that the AG made is that the Univerity can only identify the person registered in the room, not the person behind the computer.

Nine of the seventeen IP Does accessed the content in question using wireless access. While the University can identify a registered username associated with the use, it would not be able to identify the actual infringer without conducting an investigation to determine if the individual assigned that username accessed thecontent or whether someone else borrowed the username to do it.

I think that the AG nailed the RIAA's intentions right on the head. They are looking to sue somebody just to sue.

if i had your computer as a zomby i would know in a minute that you use the name "russell" and would use that as my kazaa user name....

Bingo. Plaintiffs in this case repeatedly presented that Ms. Thomas' user name was the same as was used by the KaZaA user. It is perfectly rational to conclude that if Ms. Thomas' computer was broken in to that the same user name would be used.

There was no way to prove or disprove that since shortly thereafter Ms. Thomas' hard disk was replaced. I thought a potential break-in could have easily led to computer malfunction that caused her to eventually bring the machine in for this repair.

This is just one of many potential explanations for that case. There's no sense in my going in to them since that is not on the topic of this post.

More on topic, it is good to see that a university has made a motion of this sort. Most other universities have decided that since they themselves are a non-party it is not prudent to get involved and simply respond to the subpoena with their "best guess" of who is responsible.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove